Sophie MoonenEuropean CommissionDG CompetitionHead of Unit Mergers IT, Communications, Media

GCLC – 14 September 2015

Competition law and data

Personal data and "big data"• Personal data – any information that can identify

individuals directly or indirectly • "Big data" – the collection, storage and analysis of very

large datasets that can reveal patterns of information that would not be visible from smaller datasets or individual data points

• Data can be viewed as the raw material of the information economy Firms have built businesses around the collection and use of

data Data can be used to improve goods and services – by allowing

understanding consumer behaviour and preferences (e.g. software, search, social networking, targeted advertising)

In two-sided markets - "personal data" as currency for free services (e.g. search or social networking) 2

Competition policy and data protection• "Privacy violations" should be tackled primarily by data

protection policy – Asnef antitrust judgment (2006) – competition policy not well placed to tackle these issues

• But the use of big data and personal data can be relevant to competition cases:

– Big data as an "asset": consistent practice of checking whether the merger of "big data" tools or datasets would give the merged entity an insurmountable advantage over competitors (e.g. Google/Doubleclick)

– Restrictions on data portability can increase switching costs and entry barriers

– Personal data as "currency" and/or privacy as a dimension of competition/product quality 3

"Big data" cases

Essentially merger cases:

• Google/Doubleclick (2008)

• Microsoft/Yahoo! Search Engine (2010)

• Telefonica/Vodafone/Everything Everywhere (2012)

• Publicis/Omnicom (2014)

• Facebook/WhatsApp (2014)4

Facebook/WhatsApp – data as "asset"?• Facebook provides online targeted advertising services

based on analysis of data collected from Facebook users• WhatsApp does not collect data valuable for advertising

purpose no combination of datasets• The Commission however assessed whether post-merger

Facebook would collect data from WhatsApp users (which are also Facebook users) and gain an advantage for targeted advertising− Unclear whether Facebook would have the incentive to do so− In any event, the Commission found no competition concerns

even if Facebook would use WhatsApp as a new source of user data, as there remain a sufficient alternative providers of online advertising services with access to user data valuable for advertising purposes 5

Facebook/WhatsApp – privacy as dimension of product quality?

• The Commission found that privacy was one of many parameters of competition between consumer communications apps along with other parameters such as price, reliability of the service, functionalities offered, size of the network, trendiness, etc.

• The majority of consumer communication apps do not compete (mainly) on privacy features – with some exceptions such as apps offering increased security of communications like Threema or Telegram

• The Commission's decision is without prejudice to the application of EU data protection rules to any privacy-related concerns flowing from the increased concentration of data within the control of Facebook 6

Conclusion• Big data relevant for competition assessment in digital

economy

• Merger enforcement has the potential to complement data protection law where protecting competition includes protecting privacy as an important parameter of competition/privacy concerns tied to a significant impact on effective competition

• Competition tools are "fit for purpose"; but this requires a very fact-specific assessment linked to the features of the market; the position of the players; the barriers to entry; etc.

• So far no case of anti-competitive use of big data or personal data, but this cannot be ruled out

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